FILED
Apr 20 2016, 8:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Eddie G. Love Gregory F. Zoeller
Bunker Hill, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eddie G. Love, April 20, 2016
Appellant-Defendant, Court of Appeals Case No.
20A05-1509-CR-1327
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff Shewmaker, Judge
Trial Court Cause No.
20C01-0602-FB-12
Bailey, Judge.
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Case Summary
[1] Eddie G. Love (“Love”) appeals the denial of his petition for habeas corpus and
motion to dismiss from the Elkhart Circuit Court, raising several issues for our
review. Because we conclude that Love improperly filed a successive petition
for post-conviction relief without permission from this Court in accordance
with Indiana Post-Conviction Rule 1(12), we remand to the Elkhart Circuit
Court with instructions to dismiss Love’s claims.1
Facts and Procedural History
[2] On February 17, 2006, Love was charged with two counts of dealing in
cocaine, class B felonies under the criminal code at that time. 2 A jury found
Love guilty on both counts, and the trial court sentenced Love to eighteen years
in prison. Love appealed the judgment; this Court affirmed on October 30,
2007. Love v. State, No. 20A03-0703-CR-160, slip op. at 3 (Ind. Ct. App. Oct.
30, 2007), trans. denied.
[3] On June 3, 2008, Love filed a petition for post-conviction relief, which he
amended on February 19, 2009. (App. at 5-6.) During the pendency of this
proceeding, Love filed a petition for habeas corpus on December 4, 2009, which
1
We do not disturb the order for sanctions.
2
Ind. Code § 35-48-4-1. The Indiana General Assembly recently revised the substantive provisions of this
state’s criminal statutes. We refer here to the substantive criminal provisions in effect at the time of Love’s
trial and conviction.
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was denied by the court as it was considering his petition for post-conviction
relief. (App. at 13.) Love’s post-conviction relief petition was denied on
January 27, 2010. Love appealed, and we affirmed on January 18, 2011. Love
v. State, No. 20A03-1002-PC-76, slip op. at 7 (Ind. Ct. App. Jan. 18, 2011),
trans. denied.
[4] Subsequently, Love filed a petition for habeas corpus in federal court alleging
ineffective assistance of counsel. This petition was denied and the federal
district court refused to certify an appeal on September 10, 2012. Love v.
Superintendent, Indiana State Prison, No. 3:11-CV-167 JD, 2012 WL 4017796
(N.D. Ind. Sept. 10, 2012).
[5] Love again sought post-conviction relief. On February 13, 2013, this Court
denied permission to file a successive petition. Nonetheless, “Love filed three
requests to file a successive petition for post-conviction relief, each of which this
Court declined to authorize. See Cause Nos. 20A04–1212–SP–637; 20A03–
1309–SP–381; and 20A04–1312–SP–639.” Love v. State, 22 N.E.3d 663, 664
(Ind. Ct. App. 2014), trans. denied. When Love was last before this Court in
2014, we denied his appeal, directed the trial court to consider sanctions for
future barred claims, and required that Love list all of his cases in future
appeals. Love, 22 N.E.3d at 664-65.
[6] On April 4, 2014, Love filed a petition for a writ of habeas corpus in LaPorte
County, where he was incarcerated. (App. at 47-48.) He amended his petition
in March, 2015. (App. at 54-56). On June 1, 2015, the case was transferred to
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the Elkhart Circuit Court. (App. at 63.) On July 30, 2015, in open court, Love
filed a motion to dismiss. The Elkhart Circuit Court denied his motions on
August 10, 2015. (App. at 46.) Further, the Elkhart Circuit Court heeded this
Court’s prior advice to implement sanctions, following the Indiana Supreme
Court’s opinion in Zavodnik v. Harper, 17 N.E.3d 259 (Ind. 2014). Specifically,
the Elkhart Circuit Court imposed specific filing criteria for any future litigation
Love might pursue, and stripped Mr. Love of credit time earned as an inmate in
the Department of Correction (“DOC”).3 (App. at 46.)
Discussion and Decision
[7] At the outset, we address Love’s contention that he filed a petition for habeas
corpus that should have remained in the LaPorte Superior Court. The purpose
of habeas corpus is to determine the lawfulness of a person’s restraint and may
not be used to attack collateral matters. Hardley v. State, 893 N.E.2d 740, 742
(Ind. Ct. App. 2008), trans. denied. Our post-conviction rules provide that when
an individual files a habeas petition in the county of incarceration but actually
“challenges the validity of his conviction or sentence, that court shall transfer
the cause to the court in which the conviction took place, and the latter court
shall treat it as a petition for [post-conviction relief].” Ind. Post-Conviction
Rule 1(1)(c).
3
I.C. § 35-50-6-5(a)(4) permits the revocation of credit time “[i]f a court determines that a civil claim brought
by the person in a state or an administrative court is frivolous, unreasonable, or groundless.”
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[8] Here, Love’s habeas petition attempted to attack the probable cause foundation
of his conviction, a matter barred as res judicata. Along with his petition for
habeas corpus, Love filed a motion to dismiss his original charges. It is clear that
he intended to collaterally attack his original conviction instead of discovering
the legal reason for his detainment. See Hardley, 893 N.E.2d at 743. Thus, the
LaPorte Superior Court did not err when it transferred the petition and motion
to dismiss to the Elkhart Circuit Court. In accordance with Post-Conviction
Rule 1(1)(c), then, Love’s petition and motion were to be treated as a petition
for post-conviction relief.
[9] Indiana Post-Conviction Rule 1(12) provides that, before a petitioner may file a
successive post-conviction relief petition, a petitioner must request and receive
leave to pursue a successive petition from either this Court or the Indiana
Supreme Court. As in prior cases, Love has applied for post-conviction relief
without having first sought leave under the Post-Conviction Rules. When a trial
court encounters an improper successive petition for post-conviction relief, it
should dismiss the petition. See Young v. State, 888 N.E.2d 1255, 1257 (Ind.
2008) (affirming the dismissal of an improper successive petition); Azania v.
State, 738 N.E.2d 248, 250 (Ind. 2000) (“It was procedurally improper to file the
petition without authorization from this court…. The [trial court] is therefore
directed to dismiss the [PCR petition].”); Young v. Duckworth, 271 Ind. 554, 557,
394 N.E.2d 123, 125 (1979) (“It is obvious in this case that neither [trial court]
had jurisdiction to entertain a petition for a writ of habeas corpus inasmuch as
petitioner was serving time under a proper commitment, his sentence had not
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expired and he had not been denied good time or credit time.”); Beech v. State,
702 N.E.2d 1132, 1134 (Ind. Ct. App. 1999) (“the trial court erred when it
entertained jurisdiction over [an improper successive petition]”).4
[10] Love has previously sought post-conviction relief. On multiple occasions, he
has failed to properly request permission to file a successive post-conviction
petition from this Court or the Indiana Supreme Court. The same is true in the
instant action. Accordingly, we order the trial court to vacate its judgment
(except sanctions) and remand with instructions to otherwise enter an order of
dismissal.
[11] Remanded.
Vaidik, C.J., and Crone, J., concur.
4
Love also contends that the Elkhart Circuit Court lacked subject matter jurisdiction over his case. However,
he makes no cogent argument with citation to relevant authority. See Ind. Appellate Rule 46(A)(8)(a).
Having failed to do so, Love has waived this issue.
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